The H1B visa is granted to employees who wish to work inside the U.S. on a temporary basis. Usually, workers in specialized occupations apply for this highly sought after visa. This page was designed to help foreign workers who feel they might be eligible for an H1-B visa decide whether or not they should consult an immigration attorney. This page is also extremely helpful for employers who wish to sponsor a foreign worker. This page covers the following topics:
- H1-B visa Basics
- Who is Eligible For an H1-B visa?
- Labor Certification
- How do I Apply for an H1-B visa?
- H1B Employer Requirements
- Is my Family Eligible to Join me?
- Do I Need To Consult an Attorney?
While this page discusses certain legal topics, it is not intended as a substitute for speaking directly with an immigration attorney. The application process for an H1B visa can be daunting, and an experienced lawyer can help a person potentially avoid time-consuming and costly mistakes.
H1B visa Basics
The U.S. Citizenship and Immigration Services (USCIS) website states that the H1-B visa is intended for foreign employees who work in occupations requiring highly- specialized knowledge. This can include a variety of positions, from a fashion model of distinguished merit to a person providing services to the U.S. Department of Defense. Typically, the H1B is valid for a period of three years, although extensions can be made up to a maximum of six years. In certain circumstances the employee can stay longer than six years if they fall within AC21. Ask your immigration lawyer for clarification whether or not this could apply to you.
As of the date of this writing, the United States issues 85,000 H1-B visas each year. The quota is quickly filled each year. 20,000 of the total quota are reserved for people who hold advanced degrees (master degrees and above). This quota does not apply to non-profit, research organizations (Universities), and certain transfers to another company. Since there are many more filings than available visas under the quota, the government has turned to a lottery-type system as opposed to a first to file system. This is currently being challenged.
Who is Eligible For an H1B visa?
The H1-B is a temporary nonimmigrant visa. This means that in order to qualify, a foreign worker must intend to come to the U.S. only on a temporary basis. However, unlike other temporary visas, the H1-B visa applicant does not need to have a permanent residence in his or her home country.
The applicant must have a specific offer of employment in the U.S., as well as an employer willing to “sponsor” their petition for a visa. It is also necessary in many cases to obtain labor certification from the U.S. Department of Labor before an H1-B visa will be issued.
The Immigration and Nationality Act lays out some of the criteria for the type of job that qualifies under H1B status. The law defines a specialty occupation as requiring, “theoretical and practical application or a body of highly specialized knowledge, and attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.”
The list of types of jobs that qualify a person for an H1B visa is lengthy, but includes some of the following:
Accountant, acupuncturist, chiropractor, computer programmer, cost estimator, database administrator, fashion designer, graphic designer, health services manager, investment analyst, journalist, social worker, teacher and webographer among other positions.
Research project jobs offered to foreign workers by the US Department of Defense must require a bachelor’s degree or equivalent. If the H1-B visa applicant doesn’t have a degree, he or she must have equivalent experience in the specialty required of the position.
Fashion models who apply for an H1B Visa, must be of distinguished merit and ability. Federal law describes such a model as a person who is prominent in the field and has a degree of recognition substantially above that ordinarily encountered.
It is important to remember that each H1-B visa application is as different as the person applying. In some cases, an employee who is offered one of the above listed jobs would be better served with a different type of visa. This is why it is important to consult an immigration attorney to see if they can help in your specific case.
The purpose of labor certification is to ensure that jobs going to foreign workers with H1B visa will not affect the job opportunities and wages of U.S. citizens. Currently, the U.S. House of Representative Judiciary Committee is considering a bill (HR 5801) that could affect the criteria for issuing an H1B Visa. If passed, the bill would tighten the rules allowing employers to hire certain foreign workers who displace U.S. workers.
Generally, the H1-B visa application process requires labor certification. However, in some cases, such as jobs offered by the Department of Defense, labor certification is not required.
When filing for labor certification, it is the employer’s responsibility to fill out the necessary forms. This typically includes filing a Labor Condition Application (Form 9035E/9035) through the U.S. Department of Labor. This can be done online through the department’s iCert system.
Once labor certification is approved, the employer can then petition for an H1B visa through US Citizenship and Immigration Services (USCIS).
How Do I Apply For an H1-B Visa?
It is the employer’s responsibility to file the necessary paperwork with USCIS. The process involves submitting labor certification along with a Petition for a Nonimmigrant Worker (Form I-129).
Once this form is approved, the foreign worker outside of the U.S. can apply for an H1B visa at a U.S. embassy or consulate. This application is known as an Application for a Nonimmigrant Visa (Form DS-160). Prior to entering the U.S., the foreign worker must also apply to U.S. Customs and Border Protection for final approval.
H1B Employer Requirements
While much of the h1b application process is focused on the foreign worker, the employer remains heavily involved throughout. If you are in charge of hiring foreign workers, it’s important that you become familiar with the h1b requirements for employers. There are a number of different factors an h1b visa sponsoring companies must consider when petitioning on behalf of a foreign worker. Adhering to h1b employer requirements will make for an easier application experience, a more fruitful employment experience, and could ultimately save a company valuable financial resources and time.
One of the key h1b employer requirements is payment of necessary fees. The employer is responsible for filing form I-129 with US Customs and Immigrations Services on behalf of the foreign worker. This begins the application procedure.
The standard filing fee for the Form I-129 is currently $325. There is no waiver available for this fee. In addition, h1b requirements for employers with more than 25 workers state that such employers must pay a fee of $1,500. This charge was enacted as part of the H-1B Visa Reform Act of 2004. If an employer has fewer than 25 employees, h1b requirements mandate a $750 fee.
If an H1B employer has 50 or more workers and more than 50 percent of those workers are H1B or L-1 employees, then the employer must pay a fee of $4,000 for each initial petition and each extension.
Finally, an anti-fraud fee of $500 is also among the h1b requirements. All fees are paid to the Department of Homeland Security.
Also known as “premium processing service”, some h1b employers have the option of paying an additional fee for guaranteed shorter processing. The premium processing fee is currently $1,225 and shortens the processing time of Form I-129 and Form I-140 applications.
Employers who sign on for premium service are guaranteed 15-calendar day processing or US Customs and Immigration Services (USCIS) will refund the processing fee. Premium processing begins when the employer submits a Request for Premium Processing Service (Form I-907) to USCIS.
Terminating an H1B Employee
It’s important to keep in mind that h1b visa sponsoring companies have obligations to their foreign workers as well as the government — even after the employee is discharged.
If an H1B employee is terminated or quits, the employer is required to notify USCIS in writing of the terminated relationship. In addition, the employer is responsible for paying the return travel costs of the foreign employee. Failure to do this means that the relationship technically hasn’t ended and the employer could be liable to pay the employee lost wages.
This requirement was demonstrated by the 2006 case of Amtel Group of Florida vs. Rungvichit. That case involved a foreign worker named Rung who Amtel had hired in 2000 to work as an internal auditor.
In 2002 Amtel filed an extension on Rung’s behalf at an annual salary of $49,500. In 2003, Rung took a trip to Thailand, and upon her return, was informed she was being terminated. However, Amtel failed to inform Immigration and Naturalization services (precursor to USCIS) of the termination. After Rung filed a complaint with the Department of Labor the INA ordered Amtel to pay $1000.79 in back wages. Rung appealed the case and was awarded even greater damages on an issue unrelated to the company’s failure to notify INS of the termination. However, this case demonstrates the importance of h1b visa sponsoring companies paying careful attention to h1b employer requirements.
Extension of Stay
A request to extend a foreign worker’s stay under h1b visa status must generally be made before the visa expires. This is done when the U.S. employer files another Form I-129 with USCIS asking for an extension of status on the foreign employee’s behalf.
Typically, a foreign worker’s petition is approved for up to three years. Subsequent extensions of one-year each up to a maximum of six years are possible.
Officially, once an h1b visa expires, a foreign worker has 10 days to get their affairs in order and leave the country. In cases where the employer wishes to rehire a foreign worker whose visa has expired, the worker may be required to leave the country and reapply for a visa through a foreign consulate. In such instances, h1b requirements state that the employer must seek a new labor certification from the US Department of Labor.
In cases of employees who are terminated or laid off, a 60-day grace period might be allotted to allow the worker to get his or her affairs in order.
If you are an employer who is seeking to hire foreign workers under h1b status, you might wonder if you need an attorney. While you are not required to obtain the services of an attorney to petition on behalf of a foreign worker, it is recommended that you do. As an employer, you will be responsible for dealing with multiple federal agencies and filing multiple forms. Simple errors could lead to a denial of application for your worker affecting both you and your company financially. For more information and to see how our immigration attorney can help, contact our office.
Can My Family Join Me?
Generally speaking, yes. Spouses and unmarried children (under 21 years of age) can accompany the H1B Visa holder. Family members typically qualify under H-4 nonimmigrant status.
Do I Need An Attorney?
In order to petition for an H1B visa, you should retain the services of a lawyer. Applying for a nonimmigrant temporary visa can be daunting and complex. It is a process involving multiple federal agencies as well as different aspects of immigration law.
There is no overstating the benefits of having an experienced attorney when attempting to navigate the federal immigration system. In some cases, a lawyer can spare a visa applicant the frustration of making costly or time-consuming mistakes. In order to find out if a lawyer can help you in your specific immigration case, contact our office to find out more.
The H1-B is a highly sought after visa. But often workers are looking to obtain a permanent residence with a green card. If this applies to you, read out employment-based green card page. This will give you a better overview of the employment based immigration process.
1 INA § 214 (i)(1)